The opinion of the court was delivered by
Davis, J.
This case was before this court at the last term, on exceptions taken by the plaintiffs to the ruling of the county court at a previous term, when the judgment of the latter court, which was for the defendant, was reversed, and a new trial granted. The judge, who delivered the opinion of the court on that occasion, (Redfield, J.,) not being now present, and the case not being reported, I am but imperfectly acquainted with the points then raised and decided, and not at all with the reasoning employed to elucidate them.
It is quite unnecessary to spend any time upon some of the points now raised in the argument, — particularly that in relation to the right of the town to bring the action, and that in support of the request of counsel to instruct the jury what particular acts, or omissions, on the part of the lessees would work a forfeiture of the lease at law. The only questions of importance, which the case presents, respect the proper construction of the instrument of conveyance, under which the plaintiffs claim, and the charge of the court to the juiy-
The defendant’s counsel have not suggested any doubt of the validity of the conveyance from Samuel Moulton to the-town, on account of want of adequate consideration, nor on any other account. That a legal consideration was necessary to uphold this conveyance, I have no doubt; and that the love and good-will borne by the lessor to the inhabitants of the town, expressed as the consideration for the [216]*216conveyance in the lease itself, was inadequate for that purpose, I have as little doubt
It is an innovation upon the principles of the common law to require a consideration to sustain a deed of bargain and sale, or other instrument under seal, introduced probably from the courts of equity; but, though resisted strenuously, as many other salutary principles, having the same origin were, it has long since become firmly established in England. The same doctrine is incorporated into the law in several, if not all, of the American states, our own included. Jackson ex d. Hudson v. Alexander et al. 3 Johns. 484; Fisher v. Smith, Moore 378, 569; Mildmays Case, 1 Coke 175; Jackson ex d. Allen v. Florence, 16 Johns. 47; Jackson v. Deloney, 4 Cow. 430; Jackson v. Pike, 9 Cow. 69; Stevens, Adm’r v. Griffith et al., 3 Vt. 448; Wood v. Beach et al., 7 Vt. 522. In this state a consideration, though not stated in the deed, may be shown by parol. Stevens v. Wood.
Notwithstanding the general doctrine of^the necessity of a consideration seems firmly established, it is very-apparent, from numerous cases on the subject, that the courts are satisfied with any amount of consideration, however small, and almost any statement of it, however general. Although love and good will, in this connection, are of no validity, and although the case does not shew that any evidence of a direct pecuniary consideration was introduced, yet we recognize in the scope and object of the conveyance, viz. the benevolent purpose of having a school house erected and maintained on the land, in which a school should be kept for the instruction of the youth of the then existing and all future generations, during the term of 500 years, a consideration amply sufficient to support the conveyance. In 9 Cow. 69 a conveyance in fee of two acres to the supervisors, for the purpose of building thereon a court house, as also for increasing the value of adjacent property owned by the grantor, was sustained without any other consideration. Indeed, the court say that the first of these objects was sufficient.
It has been rather intimated, than directly contended in argument, that even though a. school house were erected and maintained on the land, any other use of a portion of it, for purposes not connected with the main object in view, would operate as a forfeiture of the whole; or, at any rate, of so much as was so used, even though the [217]*217rents derived from such use were applied to the purposes of education in the town. We cannot sanction either alternative.
That the conveyance must be regarded as subject to a condition, requiring the lessees to erect and maintain a school house, in which a school should be kept a reasonable portion of the time, is undoubtedly true. That being done, the lease must be construed to vest in the lessees the use of the whole acre, for any purposes not inconsistent with the main object of the lease. There was not only no error in the instructions of the county court, which assumed that an appropriation of the rents of such portion for educational purposes would satisfy the requirements of the contract, but the case did not require evidence of such appropriation. There is nothing in the instrument indicating an intention in the lessor, that whatever advantages might, at any time, incidentally result to the town in the shape of rents, or otherwise, should be treated as trust funds, pledged to the main object. At the time, 178G, the town was new, with few inhabitants, no villages, with few school houses, and but slender opportunities of acquiring the advantages of even a common school education, while on the other hand' land was plenty and of little value. The whole acre was not required for the erection of a school house. A wood shed, yard and necessary appurtenant out buildings would occupy some additional space. It was natural to set apart some definite quantity and place' it under the control of the town, requiring on their part the erection and support of such buildings and appurtenances, as should carry into effect the benevolent objects of the public spirited lessor. Farther than that he evidently did not intend to provide. Such conveyances are always construed liberally, in support of the object.
But it is still insisted, that the town, with all allowable latitude of construction, have failed to satisfy what may be regarded as the just expectations of the donor, and that his heirs, one of whom is the defendant’s wife, has the right to resume possession of the premises, in the same manner as their ancestor might have done, if now alive.
Granting the right, in case of forfeiture, for the present purpose, although under our laws this right would seem to belong to the administrator, rather than to the heir, we are all satisfied, that the facts disclosed here shew a substantial fulfilment of the conditions and limitations, on which the conveyance was received. The house was built during the life of Mr. Moulton, in such a form as to subserve [218]*218other public purposes,- than' that of maintaining a school ;■ and this,so far as appears, without objection on his part. In fact, he must be taken to have assented, as he assisted in the erection of it. About the time of his death the house was destroyed by fire, and a new one ■'erected, on a different plan j as, in consequence of the' erection- of a meeting-house, there was no longer occasion for holding religious meetings, or town meetings, in the school house.
It has not been seriously contended, that the use of the new house for a grammar school, or academy, under a charter from the legislature, as a county school, for a number of years, should be considered as a perversion of the premises to a purpose foreign to that contemplated. Such an institution may probably not have been within the contemplation of the lessor, at the time of the lease;
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The opinion of the court was delivered by
Davis, J.
This case was before this court at the last term, on exceptions taken by the plaintiffs to the ruling of the county court at a previous term, when the judgment of the latter court, which was for the defendant, was reversed, and a new trial granted. The judge, who delivered the opinion of the court on that occasion, (Redfield, J.,) not being now present, and the case not being reported, I am but imperfectly acquainted with the points then raised and decided, and not at all with the reasoning employed to elucidate them.
It is quite unnecessary to spend any time upon some of the points now raised in the argument, — particularly that in relation to the right of the town to bring the action, and that in support of the request of counsel to instruct the jury what particular acts, or omissions, on the part of the lessees would work a forfeiture of the lease at law. The only questions of importance, which the case presents, respect the proper construction of the instrument of conveyance, under which the plaintiffs claim, and the charge of the court to the juiy-
The defendant’s counsel have not suggested any doubt of the validity of the conveyance from Samuel Moulton to the-town, on account of want of adequate consideration, nor on any other account. That a legal consideration was necessary to uphold this conveyance, I have no doubt; and that the love and good-will borne by the lessor to the inhabitants of the town, expressed as the consideration for the [216]*216conveyance in the lease itself, was inadequate for that purpose, I have as little doubt
It is an innovation upon the principles of the common law to require a consideration to sustain a deed of bargain and sale, or other instrument under seal, introduced probably from the courts of equity; but, though resisted strenuously, as many other salutary principles, having the same origin were, it has long since become firmly established in England. The same doctrine is incorporated into the law in several, if not all, of the American states, our own included. Jackson ex d. Hudson v. Alexander et al. 3 Johns. 484; Fisher v. Smith, Moore 378, 569; Mildmays Case, 1 Coke 175; Jackson ex d. Allen v. Florence, 16 Johns. 47; Jackson v. Deloney, 4 Cow. 430; Jackson v. Pike, 9 Cow. 69; Stevens, Adm’r v. Griffith et al., 3 Vt. 448; Wood v. Beach et al., 7 Vt. 522. In this state a consideration, though not stated in the deed, may be shown by parol. Stevens v. Wood.
Notwithstanding the general doctrine of^the necessity of a consideration seems firmly established, it is very-apparent, from numerous cases on the subject, that the courts are satisfied with any amount of consideration, however small, and almost any statement of it, however general. Although love and good will, in this connection, are of no validity, and although the case does not shew that any evidence of a direct pecuniary consideration was introduced, yet we recognize in the scope and object of the conveyance, viz. the benevolent purpose of having a school house erected and maintained on the land, in which a school should be kept for the instruction of the youth of the then existing and all future generations, during the term of 500 years, a consideration amply sufficient to support the conveyance. In 9 Cow. 69 a conveyance in fee of two acres to the supervisors, for the purpose of building thereon a court house, as also for increasing the value of adjacent property owned by the grantor, was sustained without any other consideration. Indeed, the court say that the first of these objects was sufficient.
It has been rather intimated, than directly contended in argument, that even though a. school house were erected and maintained on the land, any other use of a portion of it, for purposes not connected with the main object in view, would operate as a forfeiture of the whole; or, at any rate, of so much as was so used, even though the [217]*217rents derived from such use were applied to the purposes of education in the town. We cannot sanction either alternative.
That the conveyance must be regarded as subject to a condition, requiring the lessees to erect and maintain a school house, in which a school should be kept a reasonable portion of the time, is undoubtedly true. That being done, the lease must be construed to vest in the lessees the use of the whole acre, for any purposes not inconsistent with the main object of the lease. There was not only no error in the instructions of the county court, which assumed that an appropriation of the rents of such portion for educational purposes would satisfy the requirements of the contract, but the case did not require evidence of such appropriation. There is nothing in the instrument indicating an intention in the lessor, that whatever advantages might, at any time, incidentally result to the town in the shape of rents, or otherwise, should be treated as trust funds, pledged to the main object. At the time, 178G, the town was new, with few inhabitants, no villages, with few school houses, and but slender opportunities of acquiring the advantages of even a common school education, while on the other hand' land was plenty and of little value. The whole acre was not required for the erection of a school house. A wood shed, yard and necessary appurtenant out buildings would occupy some additional space. It was natural to set apart some definite quantity and place' it under the control of the town, requiring on their part the erection and support of such buildings and appurtenances, as should carry into effect the benevolent objects of the public spirited lessor. Farther than that he evidently did not intend to provide. Such conveyances are always construed liberally, in support of the object.
But it is still insisted, that the town, with all allowable latitude of construction, have failed to satisfy what may be regarded as the just expectations of the donor, and that his heirs, one of whom is the defendant’s wife, has the right to resume possession of the premises, in the same manner as their ancestor might have done, if now alive.
Granting the right, in case of forfeiture, for the present purpose, although under our laws this right would seem to belong to the administrator, rather than to the heir, we are all satisfied, that the facts disclosed here shew a substantial fulfilment of the conditions and limitations, on which the conveyance was received. The house was built during the life of Mr. Moulton, in such a form as to subserve [218]*218other public purposes,- than' that of maintaining a school ;■ and this,so far as appears, without objection on his part. In fact, he must be taken to have assented, as he assisted in the erection of it. About the time of his death the house was destroyed by fire, and a new one ■'erected, on a different plan j as, in consequence of the' erection- of a meeting-house, there was no longer occasion for holding religious meetings, or town meetings, in the school house.
It has not been seriously contended, that the use of the new house for a grammar school, or academy, under a charter from the legislature, as a county school, for a number of years, should be considered as a perversion of the premises to a purpose foreign to that contemplated. Such an institution may probably not have been within the contemplation of the lessor, at the time of the lease; yet as the charter for it was obtained the next year, and by the exertions of the representative of the town, and this, so far as appears, without opposition from him; and above all, when we consider that at least it equally answered the purpose of imparting to the youth of the town; of both sexes useful instruction,, we have no hesitation in saying we find here no misappropriation of the property..
As already intimated, the defendant was not entitled to such instructions as he requested in relation to the placing of hay scales, a fire engine house, and some other small encroachments, on a portion of the land, whether with, or without, the consent of the town. These various uses were in no way inconsistent with the object of the lease, and afford no justification for the intrusion by the defendant upon the possession of the plaintiffs.
There is one part of the charge, which, though not subject to just exception on the part of the defendant, as operating a prejudice to him, was nevertheless novel and liable to formal objection. I mean that part of it, which referred it to the jury, to say whether the several acts and uses complained of were inconsistent with the lease, or not. This was rather matter of law, which it was the province of the court to determine. Under proper instructions the jury were to find whether a forfeiture occurred, or not, or, in other words, whether the defendant was guilty, or not. Without the requisite instruc-'' tions they have found the issue in accordance with the views of this court as to the law of the case. There is, then,, no occasion to disturb the verdict.
The judgment of the county court is affirmed.